My Comments on Parole for Entrepreneurs Proposed Regulation

Posted on: November 30th, 2016

Nothing like waiting until the last minute. Today, comments were due on the proposed rule to help startup founders procure parole status to let them work for up to five years on their companies. Here’s what I sent USCIS this morning:

October 17, 2016

Samantha Deshommes

Chief

Regulatory Coordination Division

Office of Policy and Strategy

U.S. Citizenship and Immigration Services

Department of Homeland Security

20 Massachusetts Avenue NW

Washington, DC 20529

Re: DHS docket number USCIS-2015-0006

Dear Sir or Madam:

My name is Greg Siskind and I am an immigration lawyer. I’m submitting this comment on my own behalf and on behalf of Siskind Susser, PC – Immigration Lawyers. Over the last 26 years, I’ve represented many entrepreneurs who have created thousands of jobs in the US. The immigration process for would be entrepreneurs can be incredibly challenging and currently available visa categories are often inadequate. For example, the H-1B visa is largely unavailable to many who don’t succeed in getting selected in the annual lottery. And demonstrating that the founder entrepreneur is in a specialty occupation and is under the control of someone else can be a challenge. The E-2 visa is often unavailable because the entrepreneur is not a national of a treaty country or nationals of the treaty country don’t own more than 50% of the business. The L-1 won’t work for people striking out on their own and starting their own new company.

The US badly needs a startup visa. But absent that, the idea of parole for entrepreneurs is welcome. USCIS is to commended for issuing this proposed rule. As it stands, the rule will help many. But it could be improved to help more entrepreneurs which, in turn, will help create jobs for more Americans and further boost our economy.

The following are suggested improvements:

– the $345,000 capital investment threshold will be higher than many start-ups can realistically expect to receive early on even if the business is sound. I would suggest a lower amount – perhaps $150,000. Or, in the alternative, allow for a lower investment in exchange for a shorter approval period. For example, investing $150,000 would allow parole for up to 18 months while a $345,000 investment might yield a 30 month approval. Or consider lowering the threshold if jobs for US workers have already been created.

– while it is useful in determining whether a business has good prospects for succeeding if the business has attracted venture capita investors, it s not necessary and not good policy to exclude from consideration businesses funded by family investors. There have been many great businesses created as a result of receiving help from one or more family members. Ultimately, USCIS can deny an extension if it feels the family investment is not leading to significant growth of the company. Why eliminate family funded start-ups if they can demonstrate the rest of the requirements in the proposed regulation?

– Mandating the entrepreneur earn 400% of the poverty rate runs counter to a common practice with venture funding for start ups. Funders want to know that start-up founders have “skin in the game” and they often want the founders to be taking as little out in salary as possible. The 400% income requirement will unnecessarily pull funds out of the start-up including reducing the budget for hiring US workers. This is an unnecessary and counter-productive requirement.

– USCIS should work with the State Department and come up with a plan to allow paroled entrepreneurs to be able to apply to change to H-1B visas and other non-immigrant visas at US consulates in Canada, Mexico and nearby islands rather than having to consular process in the home country. Applicants will have already demonstrated they are providing substantial benefits to the country and in many cases traveling back to the home country to pick up a visa would be a waste of time and money with no public policy benefit being achieved in exchange.

Finally, while this interim solution is welcome, it would be good public policy to be able to ensure that a successful entrepreneur is not somehow still forced at the end of five years to leave. For example, if an Indian company founder has successfully met the funding and job creation requirements and has used up five years of parole time, what happens if the individual still has not been successful in getting an H-1B visa AND a green card is not available because of backlogs in the EB-1 and EB-2 categories? That is not a far-fetched scenario as the H-1B application numbers increase each year and we’re already experiencing backlogs in the EB-2 and EB-1 categories. USCIS should retain the authority to continue to extend parole status for individuals who are still delivering significant public benefits.